I normally wouldn’t be writing an article like this the day after the sudden passing of a figure so significant that all three branches of the Federal Government lowered their flags to half-mast. Justice Antonin Scalia was an intellectual heavyweight who, despite the fact that a large swath of the American people (including me) ardently disagreed with him on many of his opinions, deserves our respect for spending much of his life in service to our country. Senate Majority Leader Mitch McConnell, however, didn’t have any qualms about stating that vacancy should not be filled, not matter how qualified any potential nominee is, until we have a new President while Scalia’s body was still warm. Pres. Obama clearly stated that he will fulfill his constitutional duty of nominating someone to fill the vacancy on the Supreme Court. Leader McConnell will either confirm a qualified Obama nominee, or he will be playing Russian roulette with a fully loaded gun.
Leader McConnell also stated yesterday that, “The American people should have a voice in the selection of their next Supreme Court Justice.“ I agree with Leader McConnell, and would like to remind him that the people were loud and clear when they overwhelmingly re-elected President Obama in 2012. The Constitution grants the President the power to appoint Supreme Court Justices for their full 4-year term, not just the first three quarters of their term. Elections have consequences. It would be different if we already had a President-Elect, or if the election were weeks away. We don’t even know who will be on the ballot in November. The record for the longest time it took for a nominee to get confirmed by the US Senate is 125 days, which is less time than we have to either nominating convention and less than half as much time as we have until the November election.
It is impossible to overstate how consequential this Supreme Court appointment is going to be. The balance of the court for a generation is likely at stake (decisions like Citizens United would be overturned if the new justice disagreed with the opinion of the justice (s)he is replacing). Leader McConnell hoping that a Republican wins in November and that he can hold off confirming an Obama nominee for almost a full year will quickly become untenable as it is unsustainable. I can’t imagine Pres. Obama nominating someone who isn’t eminently qualified for the position. He could nominate someone like Jeh Johnson, who has already been confirmed by 78 US Senators, or even a US Senator like Sen. Amy Klobuchar. He will have plenty of options, but it is a safe assumption that he will nominate someone every reasonable person will say is more than qualified to serve on the US Supreme Court.
Leader McConnell’s position will become untenable because we are not only electing a President this November. Two-thirds of the country will also be electing a US Senator (whose job it is to advice and consent on Supreme Court nominees), and there are plenty of blue state Republicans up for re-election. has 7 Republican US Senate seats rated as either Toss Up or Lean Republican (Democrats will re–take control of the US Senate with a net gain of 5 seats). Pres. Obama won 6 of these 7 states twice, and won the remaining state (NC) in 2008:
- Florida (Rubio)
- Kirk (IL)
- Ayotte (NH)
- Johnson (WI)
- Burr (NC)
- Portman (OH)
- Toomey (PA)
- Indiana (Coats)
- Blunt (MO)
- Louisiana (Vitter)
- Paul (KY)
Democrats have a built in advantage in Presidential elections because of the electoral math. So, hoping a Republican wins in November is not exactly a winning strategy to begin with (though it is the only one Republicans have). Not voting on, or not giving an up or down vote to, a qualified Obama nominee will give Democrats a weapon with which they can bludgeon the Republican nominee for President and every Republican US Senator up for re-election with. It will be even worse for the Republicans than it was when they shut down the government in 2013. The Republicans will show that they cannot govern and will be blamed for the dysfunction that plagues Washington, and with which every voter is sick of when you look at the Presidential Primary Elections. It will also give every Democratic US Senate nominee the gift of easily tagging every GOP incumbent as out of touch and a beholden puppet to the extreme right wing of the GOP.
Congressional Republicans tried this tactic of blind obstruction with the Affordable Care Act (aka Obamacare), and despite the fact they had a much better hand to play in 2009 they lost at every turn. The consequences of Leader McConnell digging in his heals and not confirming a qualified Obama nominee will be a backlash that will lead to an almost definite Republican loss in the Presidential Election and a Democratic takeover of the US Senate. It will also give a new Democratic majority in the US Senate the ammunition to change the rules next January to forbid filibusters on Supreme Court nominees. So, Leader McConnell can either fulfill the constitutional duty of the US Senate to advice and consent on an Obama nominee, or lose in November and be powerless to stop what would likely be a much more liberal nominee put forward to a Democratic US Senate by the next Democratic President.
Sean Phillippi is a Democratic strategist and founder of the political data firm TLE Analytics